I. INTRODUCTORY CRAP

A. Definitions

  • Trespass is a direct interference with property;
  • trespass on the case is an indirect interference with property.
  • Bilateral monopoly – when there is one buyer and seller and both become so caught up on haggling that a deal is difficult to make
  • Property-rule protection – gives the owner of the resource/right the absolute right to determine exclusion
  • When would you want to use this?
  • items that have value are not reflected in market price

where owner has a special relationship with the resource

  • where there are religious, moral, or other privacy concerns
  • Liability-rule protection – cannot get equitable relief (specific performance, injunction); can only get compensated for damages
  • When would we want to use this?
  • Where there is a monopoly over a resource and this resource is of immense value to society
  • Subject to open

II. WHAT CONSTITUTES POSSESSION?

A. Physical Occupation Required

  • Pierson v. Post (N.Y. 1805) – fox case
  • mere pursuit is not enough
  • Rationales:
  • precedent
  • create certainty to reduce disputes and make them easier to resolve
  • the dissent wants to encourage fox hunting and would make the standard as long as someone is in pursuit and has a reasonable expectation of killing the fox

B. Custom Determines Possession

  • Ghen v. Rich (D. Mass. 1881) – whale case
  • No reason to deviate from a functioning system of custom
  • Rationales:
  • custom may reflect the best method as it’s made by the people who know best
  • Problems with Custom:
  • Who is affected by this rule and who is included in the custom decision?
  • The whalers (included)
  • The finders (probably included)
  • The consumers (probably not included)
  • The city (maybe not included)
  • It can be ambiguous. May not be written.

C. Rationales for Different Definitions of Possession For Different Animals

  • Different customs for hunting different animals.
  • Investment differs.
  • Changes cost/benefit analysis.
  • Labor—larger investment should be rewarded with property rights.
  • Fairness—the one who sows should reap.
  • Different purposes for hunting (pleasure vs. business).
  • The process might be the reward.
  • Incentives.
  • Extent to which pursuit “gives notice” to others varies.
  • Expectations – the law usually wants to not go against common expectations.
  • Society’s goals vary (do we want the animal killed?).

D. Whatever Leads to the Best Result

  • Popov v. Hayashi (Ca. trial court 2002) – Bonds baseball case
  • Facts: P caught the Bonds 73rd homerun ball in his glove, although it was not clear whether or not he actually was in complete control of the ball or would’ve been able to maintain complete control. Before this could be determined, other spectators jumped in and basically attacked P, and eventually the ball was dropped. D was able to pick up the loose ball and show it to the camera before placing it back into his pocket.
  • Holding: Both have equal claims of ownership to the ball. P did achieve full possession, but he did have a right to attempt to achieve possession and therefore has a pre-possessory interest in the baseball. On the other hand, D did everything necessary to claim possession, and is only hampered by P’s pre-possessory interest, of which he had no knowledge. The court awarded an undivided joint interest in the ball. The ball should be sold and the profits split between the two.

E. Possible schemes to resolve possession disputes

  • Elites win (“might makes right”)
  • Certainty of kill
  • Proximity/jurisdictional boundaries
  • Share
  • Labor/dessert
  • Custom

Keeble v. Hickeringill

Queen’s Bench, 1707.

Facts: P owned and operated a duck decoy pond on his land. D on multiple occasions came to the pond and fired a gun to scare away the fowl in the pond. It appears that D may have owned a competing decoy pond on his own land, close by. P sues for trespass on the case.

Issue: Is there a cause of action?

Holding: Yes, because D maliciously interfered with P’s livelihood.

Notes:

  • Does it matter that no one took the duck? (as opposed to Pierson)
  • Competition is good and leads to cheaper ducks
  • Attention to the nature of the interference rather than the ownership of the animal

Constructive Possession

I. THEORIES OF PROPERTY

A. Locke

  • a person owns their own body
  • the earth, nature, is owned by human kind in common
  • a person comes to own something else by mixing it with his own labor, whether that be tilling the land, picking apples, hunting, etc.
  • one owns only what he rightfully can enjoy—anything else is more than his share and has therefore not been consented to by mankind
  • because of money, mankind has consented to a disproportionate and unequal distribution of land where one may own more than his share

B. Radin, Property and Personhood

  • Property exists on a scale from completely fungible to very personal
  • The importance afforded to these property rights seems to very with its position on the scale—more personal and irreparable property is considered more important to protect.
  • People become bound up with “things” that, to some extent, determine their personhood or self.
  • Property and personhood are intertwined
  • Personal Property – property whose replacement would not be worth the same amount to the individual as the original piece of property
  • Fungible Property – property held mainly to be exchanged for other property (i.e. money)

II. EXPLAINING PRIVATE PROPERTY

A. Rose

  • The property narrative gap: Why would anyone set up a civil society to regulate property rights if they were unwilling to put in the effort to till without guarantee of protection? (basically, free-rider problem)
  • Why is the profit-maximizing man the default character?
  • Demsetz’ answer to Rose: systems of property evolve; they are not spontaneous creations from the people

B. Demsetz

  • When a society needs to takes externalities into account, they move towards a system of private property
  • Communal vs. open access – communal implies a community that jointly owns the land, whereas open access land/resources anyone who happens by can utilize the resource
  • Tragedy of the commons refers to both open access and communal ownership systems

C. Other explanations for the formation of a private property system:

  • Instinct (like animals carving out territories)
  • Order (protection)
  • To protect the elite (elite gain property and find that private property reduces protection costs)

D. Problems with moving to a private system (transaction costs)

  • Hold-out
  • Negotiation
  • Free-riding
  • Continuing disputes
  • Enforcement
  • ID Costs
  • Illegality

Fish hypo – communal system with 100 community members

  • Person A catches 1 fish. The person gains 1 fish, and loses 1/100 of the undivided community interest in the fish.
  • The rest of the community loses 1/100 each of the undivided interest in the fish or 99/100 total (and gains nothing).
  • If the other 99 people offer money to Person A to stop fishing, and Person A rejects that offer, is it still an externality?
  • No, because now Person A has been forced to take into account the cost imposed on others.
  • Why will the present community-members not take into account the value of the fish to future generations?
  • Because even if each community member individually realizes the value of leaving fish for future generations, no one person is able to stop all the other people from over-fishing, and must fish to make sure they can eat now.
  • A private market theoretically takes into account the future value of a property, but this is impossible in a communal system because exclusion is not possible.

Negative externalities – lead to overconsumption

Positive externalities – lead underproduction

How does private property solve communal problems?

  • Internalization of costs - interest in conservation; resale value
  • Allows for bargaining between owners (fewer people negotiating)
  • Still externalities (e.g. pollution)

When could private property exist when the costs to society are greater than the benefits?

  • When there are private actors who would be greatly benefited by private property who can convince the gov’t and impose the costs on the rest of the society.

The anti-commons

  • Too many people have the right to stop another from using that resource
  • Patents—must buy licensing rights for every part of your invention

Why might distributing IFQs through auction be inefficient?

  • Anti-competitive/monopoly if one person buys all
  • Distributive problems could result in transaction costs being too high to actually move to an IFQ system

I. Rights of the Finder

A. Against the rest of the world

  • Armory v. Delamirie (Britain 1722) – chimney sweep case
  • “A finder has a claim to such property as against all of the world except the rightful owner. “

B. Against the property owner where it was found

  • Hannah v. Peel (Britain, 1945) – valuable broach in never-occupied house
  • Finder has rights over the owner of the house as the item was not “attached to or under” the land of the owner, nor did the owner ever actually have possession of the broach.
  • McAvoy v. Medina (Mass. 1866) – purse found in barbershop
  • The barbership owner has rights over the finder because the item was mislaid by a customer, not lost, and this result leads to a greater possibility that the original owner will recover the item.
  • Arguments for giving it to property owner:
  • Discourages trespass
  • Increases likelihood of return to original owner

C. Special Cases

  • Treasure trove
  • at English common law treasure trove (must be buried) belonged to the king
  • Shipwrecks
  • the US passed a law that finders’ rules did not apply to shipwrecks, but that the US retained possession to all shipwrecks found in its waters and turned possession of them each over to the individual states.

Johnson v. M’Intosh (1823)

U.S. Supreme Court

Facts: P claimed the land under purchase from Indians and D claimed land based on a later grant (“patent”) from the United States.

Issue: Do they Indians have the right to sell or grant land to an individual?

Holding: No, the government of Britain, the US, and the states have maintained the exclusive right to take Indian lands through purchase or conquest once they have discovered it. The Indians did not “own” the land because they were “savages,” and the land was therefore considered to belong to no one.

Notes:

  • Would it have mattered if anyone was actually in possession of the land?
  • Probably not, by the court’s argument.
  • The court’s main argument is institutional competency—the court can’t say the rules are illegitimate because then the court is illegitimate

Some basic rules about rights of creation

Copyrights and patents under the common law

  • International News Service v. Associated Press (U.S. 1918 - pg. 51)
  • Holding: AP has no property right in the news as against the public—it is the history of the day—however, they have a property interest against their competitors that remains after first publication, but only so long as it takes to get the news out to their clients.
  • Rationale: Policy reasons: the judge felt that protecting the interests of the news gatherer was important as this was a contribution to society and INS’ behavior, if condoned, could render the service cost-prohibitive.
  • Cheney Brothers v. Doris Silk Corp. (2d Cir. 1929 - pg. 55)
  • Holding: There is no common law system of copyright protection. INS v. AP holding is limited to the facts of that case, as a broader reading would seem to say that the court mean to create a common law patent system which would conflict with Congress’ system and makes no sense.

Acceptable uses of copyrighted material

  • Smith v. Chanel, Inc. (9th Cir. 1968 – pg. 56)
  • One company can use the trademarked named of a non-patented product of another company. Leads to better competition.
  • Nichols v. Universal Pictures Corp. (2d Cir. 1930 – pg. 59)
  • D’s use of P’s play did not constitute copyright infringement as all work builds off other work, and the themes and characters fall into the public domain.
  • White v. Samsung Electronics America, Inc. (9th cir. 1993) – Vanna White robot
  • There is a parody exception to federal copyright law.
  • MGM Studios, Inc. v. Grokster (U.S. 2005 – pg. 65)
  • When one distributes a device with the object of promoting its use to infringe copyright, it is liable for resulting acts of infringement by third parties. They are not liable if there is only the mere understanding that the device may be used for copyright infringement, but only if they have taken steps to encourage it and not discourage it, as in this case.

Patentable or Not?

  • Diamond v. Chakrabarty (U.S. 1980 – pg. 60)
  • D can patent a bacterium that he created since it does not exist naturally.

Rights in One’s Own body

  • Moore v. Regents of the University of California (Cal. 1990 – pg. 69)
  • No ownership interest in cells after removal.
  • Policy reasons support not allowing Moore to sue for conversion—do not want to create barriers to research and can create patient rights by other means.

Policy Crap:

  • Why is copying unfair?
  • Profiting from another’s investment and labor
  • People deserve a reward for their labors
  • People may not invest if they cannot be assured for their reward
  • Why might we want to allow imitation?
  • Competition leading to efficiency
  • So basically, fairness vs. efficiency

Right to exclude:

Jacque v. Steenberg Homes (pg. 87)

Wisconsin Supreme Court, 1997

Facts: D needed to deliver a mobile home and the easiest route was through P’s fields. P refused, at any cost, to allow them to do this, and repeatedly said they did not want them on their property. They plowed a path through the field and moved the mobile home through it anyway. The jury awarded $1 nominal damages and $100k punitive, but the circuit court set aside the punitive damages, saying punitive damages are not allowed in the case of nominal damages. Court of appeals affirmed.

Issue: Should the punitive damages be allowed?

Holding: Yes, punitive damages may allowed in the case of nominal damages awarded for intentional trespass. Society has a strong interest in protecting landowners and deterring trespassers, and property owners who have faith in the legal system are less likely to take matters into their own hands.

State v. Shack (pg. 88)

NJ Supreme Court, 1971

Facts: P is a farm owner who employs migrant workers and houses them on his land. He had had a previous run in with one defendant, who worked with an org. providing assistance to migrant workers. The first defendant talked to the second defendant (with an org. providing legal services) and they decided to go to the living quarters together to see 2 migrant workers who needed their assistance. P refused to let them talk to the worker in private and asked Ds to leave, which they did not. The sheriff did not force them to leave until P filed written order. P sued for trespass and Ds defended on constitutional grounds.

Issue: Is the claim of trespass valid?

Holding: No, because the right of ownership does not include the right to bar access to government services available to migrant workers, and therefore there was no trespass.

Notes:

  • Why didn’t the court decide this based on landlord/tenant relations?
  • Didn’t want to go give migrant workers tenant status
  • Wanted to provide rights that would be relevant in broader situations
  • Is that different from above because of necessity?
  • Is it actually a necessity?

I. ELEMENTS OF ADVERSE POSSESSION

A. An actual entry giving exclusive possession

  • Use in the manner that an average true owner would use it under the circumstances

B. Open and notorious

  • such that neighbors would regard that occupant as exercising exclusive possession
  • normal use of land as owner (similar to above)

C. Adverse and under a claim of right

  • claim of title is a state of mine that falls into 3 types required by different states:
  • state of mind is irrelevant
  • state of mind is “I thought I owned it”
  • state of mind is “I thought I didn’t own it but I intended to make it mine”
  • rationales:
  • Protects against, for example, tenants claiming adverse position
  • Protects owners in cases where they have given permissions to the user to use the land
  • Also sort of a notice requirement

D. Continuous for the statutory period

  • Are there any exceptions to the statute of limitations? i.e. the original property owner is a minor or otherwise incompetent to manage the property

II. TYPES OF ADVERSE POSSESSION

A. Boundary mistakes

  • These kinds of cases are driving the definitions of adverse possession
  • Can be resolved by agreed boundaries, acquiescence and estoppel
  • Mannillo v. Gorski (N.J. 1989)
  • Hostile possession is not required for boundary disputes. However, this is not dispositive as it is not clear whether the possession was “open and notorious” as another owner cannot be expected to constantly survey the land for small encroachments.

B. Aggressive trespasser (squatters, etc.)

  • Taxes
  • Out west, the person trying to claim adverse possession must’ve paid taxes on the land during the SOL period
  • Not required in the East, but aggressive trespassers are not as common

C. Color of title mistakes

  • Refers to a claim founded on a written instrument or judgment/decree that is for some reason mistaken of invalid
  • Actual possession under color of title of only a part of the land covered by the defective writing is construction possession of all that the writing describes

D. Prescriptive easement

  • like a limited adverse possession doctrine; you obtain a right to use a piece of land in a particular way

Van Walkenburgh v. Lutz (pg. 115)

Court of Appeals of NY, 1952

Facts: D bought one lot of land in a new subdivision in 1912 and utilized another unoccupied lot (lot 19) to travel to his land. D built a home for his brother, Charlie, and a garden on Lot 19. Ps bought another lot, and later there was bad blood between them and Ds. In 1947 they bought Lot 19 on auction from the city without notifying D. D claimed the right to travel on the land and sued, and won an injunction to keep Ps from blocking his travel on the land. P then sued for removal of D’s possessions from the land. Trial court found for D, finding that he had established quiet title to the land.